January 15, 2007

Cause and Effect?

by emptywheel

So what would you do, if you were the leader of a very corrupt party, exposed to a host of finance scandals, but your party had just been trounced in the most recent elections? You could no longer count on committee chairs from your party to obstruct investigations into the military contractor/legislator gravy train that is so critical to your party's pocketbook?

I ask, because I might well react the way the Bush DOJ has. You see, last week, the San Diego Prosecutor's office subpoenaed Congress for bucketloads of documents relating to appropriations. And they are specifically asking the Democrats to turn over the documents instantaneously (Roll Call via Kagro X):

"To ask us to produce that stuff by [Jan. 11]
is ridiculous given the fact that we haven’t taken over yet and every
record that we’re talking about is a Republican record so I have no
idea what the documents are and it’s a Republican problem.... We will
try to cooperate, but it’s a Republican problem."

Now Kagro thinks the subpoena might be an attempt to occupy the time of our Democratic staffers. But consider the move by the Bush Administration to ask Carol Lam, the prosecutor asking for these documents, to resign?

The Bush administration has quietly asked San Diego U.S. Attorney Carol
Lam, best known for her high-profile prosecutions of politicians and
corporate executives, to resign her post, a law enforcement official
said.

Lam, a Bush appointee who took the helm in 2002,
was targeted because of job performance issues – in particular that she
failed to make smuggling and gun cases a top priority, said the
official, who declined to be identified because Lam has yet to step
down.

Of course, it may well be a chicken and egg thing. The deadline on the subpoena was January 11. On January 12, we hear Bush wants Lam gone because she focuses on things like corruption. Maybe Lam is after something specific, and is racing against the Bush Administration that is trying to get rid of her before the Democrats realize what is in Congressional documentation.

In any case, I'm guessing BushCo will go to some length to shut down that SD investigation.

Comments

It sounds like Lam might have sent the subpoena in response to being asked to resign. Presumably that conversation occurred at least a few days before the news media reported it, i.e. right before she sent the subpoena to the Democrats. Her subpoena certainly drew their attention to her investigation, which is perhaps all she really wanted now that Democrats have subpoena power and possibly even custody of the relevant congressional documents.

So why would the administration fire her, if the result is merely to trade one investigation for another? Because congressional oversight committees controlled by the opposition party are easier to paint as partisan witch-hunts than federal prosecutors.

It sounds like Lam might have sent the subpoena in response to being asked to resign.

Her team had been trying for a long long time to get the same records from Congress and were presumably watching to see what happened with a) Jefferson litigation and b) responses from new heads (who, though Dems, were already making noises that they wouldn't turn things over either).

I'm sure everything is of a piece, but I think the idea of the subpoena has been out there for awhile and also, there have been grumblings for some time that CUnningham shut down on them after the plea and was NOT cooperating.

I suggest a post by Laura Rozen. It's another angle to consider... She speculates these firings are associated with the legal defense of Jerry Lewis, former chair of the House Appropriations Committee. The cool thing about Lewis, besides knowing where the bodies are buried (so to speak), is he bridges the two separate scandals that are Abramoff and Duke Cunningham.

Now, I wonder why the White House would want to prevent such investigations from moving forward?

As for Fitzgerald: I think only Abu Gonzales could can him, and that might be tenuous since Fitz has all the "plenary power" of the AG. It would be another attempted Saturday Night Massacre, and it should surely cause a revolt if Abu G. tried it. Comey was damned savvy in his approach to Fitz' authorization, and I wonder if Ashcroft also knew it would come down to his, making for the exit like he did. Just check out the wording:

independent of the supervision or control of any officer of the Department."

[emphasis mine]

This has always made me wonder if Ashcroft and then Comey saw immediately that Abu G. had a conflict, and that there could be pressure to shut down the investigation.

Maybe it's time for Congress to re-visit independent prosecutors under 28 U.S.C. 595.

""By the authority vested in the Attorney General by law, including 28 U.S.C. $$ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. $ 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department."

Rayne - removal was a big part of the issue in the Motion to Dismiss. While Walton found that the Spec COunsel was properly appointed, the judge also specifically found that Fitzgerald could be removed (and Fitzgerald's own filings even argued that he [the Spec Counsel] could be removed).

Margolis could remove him or McNulty could revoke the delegation to Margolis and remove. Not to say that any of that would be likely.

I think my point woudl combine Rayne's point and dqueue's. The Jerry Lewis/CIA/DOD connection is the heart of GOP funding (and, I've been suggesting forever, likely some funding of illegal covert ops). So if they get close to that, they will get close to the whole core of the Republican party.

Mary 17:38 -- but either of those actions -- removal by Margolis or revocation by McNulty -- in the absence of a gross failure or defect in prosecution would certainly be seen as another Saturday Night Massacre.

I'm sure the removal issue was a concern to Fitz as early as 06-FEB-04. While there may have been other reasons for Fitz to ask for clarification, pressure from third parties about scope and the legitimacy of his investigation would be reason enough to ask for documented clarification. No small wonder that this clarification specifically referenced 28 CFR part 600 (General Powers of Special Counsel); note in particular the requirement under 600.9 for Congress to be notified of the Special Counsel's removal where applicable.

I'd love to see Abu G. try to explain that to Leahy; it doesn't look to me like Margolis or McNulty would have to do the 'splainin'.

EW -- exactly; I wonder how big the budget is for covert ops, if it grew exponentially during the Bush years. Enron accounting, where covert activities are treated like off-the-books entities...kind of like the accounting for FEMA post-Katrina, too.

either of those actions -- removal by Margolis or revocation by McNulty -- in the absence of a gross failure or defect in prosecution would certainly be seen as another Saturday Night Massacre

Yes, it would. But he doesn't have plenary power that prevents removal. I lose you on why you think McNulty wouldn't have to explain the removal if he undertook it? - but I don't think it is that likely anyway. Other ways to skin that cat.

Keep in mind that, unlike the Sat Night massacre crew, not too many people in the upper echelons of the current DOJ seem to have many qualms about going ahead with things - things that might have made even Bork blanch a little. Still, I don't think it's likely, just wanted to point out that there is no power delegated to Spec COun that would prevent removal and both the Spec Coun and Court have specifically said he could be removed.

I'm not sure I follow your reference to the CFRs, bc the delegation and later opinion by Walton said they didn't apply (Further, my conferral ...should not
be misunderstood to suggest that your position and authorities are defined and limited by
28 CFR Part 600.)

It's a strained sentence, but "should not be misunderstood to suggest" = your position is NOT defined and limited by 28CFR 600."

My bias is that I thought from the start they should have gone with an independent counsel and Congress was pretty ready - the Spec Counsel approach was sold hard to them. A spec couns approach did not give anywhere near the same investgatory and prosecution mandae that an Indep Couns approach would have, and IMO more's the pity. ymmv

The Jerry Lewis/CIA/DOD connection is the heart of GOP funding (and, I've been suggesting forever, likely some funding of illegal covert ops). So if they get close to that, they will get close to the whole core of the Republican party.

What a pretty picture. And no doubt (via Clemons) the misAdministration hoarded the plum accounts for themselves.

What's important in comparing the Commission offered to Fitzgerald with the Watergate era commissions to the special counsel is the role the Senate played in creating a guarentee for Jaworski after the firing of Cox. It has to be remembered the job of AG became vacant during the Saturday Night Massacure because Richardson had promised to not take direction from Nixon or the WH during his confirmation hearings in the spring of 1974 after the resignation of Kleindeinst. Had Richardson actually fired Cox, he would have violated a public but oral representation he had made to the Senate. Subsequent to that in hearings on the next AG, the Senate imposed the same rules -- this time in writing -- but made the appointment contingent on incorporating this in the Commission provided for Jaworski. Both the AG and Jaworski were obligated to report to the Senate if any undo political pressure from the WH occurred.

Obviously we don't have a new AG appointment in the wings right now to use as leverage -- but I suspect if he worked at it, Senator Leahy could come up with appropriate leverage.

By the way, I am in the midst of Peter Lance's book (on which the awful ABC Miniseries was based) "Triple Cross" -- which is highly critical of Fitzgerald's earlier prosecutions in New York of the WTC 1993 bombers, the embassy bombing and all. I haven't yet gone through and evaluated all the points, but superficially it is quite a slime job, contending that Fitzgerald's failure to expand his targets was partially responsible for the failure to nix 9/11 before it happened. Anyone else reading Lance's book?

I agree that Johnson Skewered it, but that is one reason I am reading it. Remember, Simon and Benjamin and Johnson were writing op/ed's against each other in the summer of 2001, and Clarke, Simon and Benjamin found Larry Johnson way off base prior to 9/11. At that time they were pitching high fly's into the outfield to see who would catch what.

I think Peter Lance is bought and paid for by someone -- and that is why figuring out the structure of his Fitzgerald slime interests me.

Dan Dzwilewski is the head of the FBI in San Diego. So far, he seems to be the only person who has spoken directly with Lam. And this is what he says: “I can't speak for what's behind all that, what's the driving force behind this or the rationale. I guarantee politics is involved.” Lam's continued employment as U.S. attorney is crucial to the success of multiple ongoing investigations, the FBI chief said.

Besides the Duke Cunningham case which has tentacles that may go uncomfortably close to several other congressmen and defense contractors, Lam seems to have pissed off Darryl Issa and the whole anti-immigrant faction. Instead of rounding up a few busloads of illegal workers and ostentatiously deporting them, Lam went right to thr heart of the problem. She prosecuted a fence building company after they continued to hire illegal workers after being warned not to. Two executives may serve jail time. That's not what the anti-immigrant legislators and their allies, hate radio had in mind when they whipped everyone into a frenzy during the last election cycle.

Actually for the next few days the stars are in order to make a huge pan of Lasagana, eat two portions, and package and freeze the rest. Without a working Oven last year, I was not able to engage in this winter rite, and Lasangna does not make for less than a full pan for ten servings. (given all the stuff I believe belongs in it.)

This night Matthews had two guests on to discuss the approaching trial, Howard Fineman and Charlie Cook. Cook probably had the better commentary, why was this not settled out of court? Fineman kept talking about the wide angle picture, and Cook put it properly, Fitzgerald is after a little picture that could lead to something more wide angle. Well maybe.

smiley 22:31 -- um, yah...but there's the Porter Goss CIA, and then there's the other CIA, the one for which folks like Ray McGovern used to work. We know the Porter Goss CIA is the complicit faction, the same one that helped in some way to stovepipe intel pre-Iraq; would like to know when the other CIA is going to "take care of business". I suspect the obstructive foot dragging wouldn't be happening if there was a good sized piece of evidence laid out in plain site someplace where folks could see it and create a sh*tstorm about it.

They are firing US Attorneys all over the country and replacing them with political operatives who don't have to be confirmed by the Senate under a "little-known provision of the Patriot Act." How many more of these bombs are out there? Spector?